Citation Nr: 0624437
Decision Date: 08/11/06 Archive Date: 08/18/06
DOCKET NO. 04-15 512 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUE
Whether there was clear and unmistakable error (CUE) in a
July 1992 decision, which granted 10 percent evaluation for
service-connected bilateral tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Clifford R. Olson, Counsel
INTRODUCTION
The veteran's active military service extended from December
1967 to July 1991.
This matter comes before the Board of Veterans' Appeals
(Board) from an April 2003 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Anchorage,
Alaska, which determined that no CUE occurred in a prior
rating decision that granted the veteran 10 percent for his
service-connected bilateral tinnitus.
A July 1992 rating decision granted service connection for
tinnitus, rated as 10 percent disabling, and for a bilateral
hearing loss, rated as noncompensable. In January 2003, the
veteran requested an increase in his service-connected
bilateral hearing loss. He did not mention tinnitus,
although, in the accompanying letter, his representative did
claim CUE in the original RO decision that signed a 10
percent ratings for tinnitus. The April rating decision
denied the CUE claim and did not address the claim for an
increased rating for the bilateral hearing loss. The April
2003 letter from the RO addressed the bilateral hearing loss
claim and told the veteran what was needed to substantiate
the claim in compliance with Veterans Claims Assistance Act
of 2000. The veteran was subsequently afforded a VA
audiometric examination in June 2003. It does not appear
that a rating decision was ever made on the claim for an
increased rating for a bilateral hearing loss. This matter
is referred to the RO for appropriate action. Absent a
decision by the RO, notice of disagreement, a statement of
the case and a substantive appeal, the Board does not have
jurisdiction. Hazan v. Gober, 10 Vet. App. 511 (1997);
Bernard v. Brown, 4 Vet. App. 384 (1994); Rowell v. Principi,
4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993).
FINDING OF FACT
1. The RO committed no factual or legal error that would
have manifestly changed the outcome of its July 1992
decision assigning a 10 percent rating for the veteran's
bilateral tinnitus.
2. The veteran has received the maximum schedular rating of
10 percent authorized under Diagnostic Code 6260 for his
service-connected bilateral tinnitus.
CONCLUSIONS OF LAW
1. The claim of CUE in a July 1992 rating decision
assigning a 10 percent rating for bilateral tinnitus is
denied. 38 U.S.C.A. §§ 5103A, 5109A (West 2002); 38 C.F.R.
§§ 3.104, 3.105 (2005).
2. There is no legal basis for the assignment of a
schedular evaluation in excess of 10 percent for bilateral
tinnitus, to include separate 10 percent ratings for each
ear. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87,
Diagnostic Code 6260 (2005); Smith v. Nicholson, 451 F.3d
1344 (Fed. Cir. 2006).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duty to notify and assist claimants
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2005). The United States Court of Appeals for Veterans
Claims (Court) has held that the statutory and regulatory
provisions pertaining to VA's duty to notify and to assist do
not apply to a claim if resolution of that claim is based on
statutory interpretation, rather than consideration of the
factual evidence. See Dela Cruz v. Principi, 15 Vet. App.
143, 149 (2001).
In the instant case the facts are not in dispute. Resolution
of the veteran's appeal depends upon an interpretation of the
regulations pertaining to the assignment of disability
ratings for tinnitus. As discussed below, the Board finds
that the veteran is already in receipt of the maximum
scheduler disability rating available for tinnitus under the
applicable rating criteria. This is true irrespective of
whether the veteran has unilateral or bilateral tinnitus.
Therefore, because no reasonable possibility exists that
would aid in substantiating this claim, any deficiencies of
VCAA notice or assistance are moot. See 38 U.S.C.A. § 5103A;
Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance
with the VCAA is not required if no reasonable possibility
exists that any notice or assistance would aid the appellant
in substantiating the claim).
II. Law and Regulations
a. Clear and Unmistakable Error
Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of [an RO]
shall be final and binding on all field offices of [VA] as to
conclusions based on the evidence on file at the time VA
issues written notification in accordance with 38 U.S.C. §
5104." 38 C.F.R. § 3.104(a). Such a final decision may be
subject to revision, however, in the presence of clear and
unmistakable error, as described in 38 C.F.R. § 3.105. 38
C.F.R. §§ 3.104(a), 3.105. Thus, a prior RO decision will be
accepted as correct unless CUE can be shown. 38 C.F.R. §
3.105(a).
The criteria to determine whether CUE was present in a prior
determination are as follows: (1) either the correct facts,
as they were known at the time, were not before the
adjudicator (i.e., there must be more than a simple
disagreement as to how the facts were weighed or evaluated)
or the statutory or regulatory provisions extant at the time
were incorrectly applied; (2) the error must be undebatable
and of the sort which, had it not been made, would have
manifestly changed the outcome at the time it was made; and
(3) a determination that there was clear and unmistakable
error must be based on the record and law that existed at the
time of the prior adjudication in question. Russell v.
Principi, 3 Vet. App. 310 (1992); accord Richardson v.
Nicholson, 20 Vet. App. 64, 68-69 (2006) (setting forth CUE
requirements).
CUE is a very specific and rare kind of "error." It is the
kind of error, of fact or of law, that when called to the
attention of later reviewers compels the conclusion, to which
reasonable minds could not differ, that the result would have
been manifestly different but for the error. . . ." Fugo v.
Brown, 6 Vet. App. 40, 43-44 (1993); accord Richardson, 20
Vet. App. at 68-69 (noting that "the error must have
'manifestly changed the outcome' of the prior decision").
If a claimant-appellant wishes to reasonably raise CUE there
must be some degree of specificity as to what the alleged
error is and, unless it is the kind of error that, if true,
would be CUE on its face, persuasive reasons must be given as
to why the result would have been manifestly different but
for the alleged error. There is a presumption of validity to
otherwise final decisions, and where such decisions are
collaterally attacked--and a CUE claim is undoubtedly a
collateral attack--the presumption is even stronger. See
Grover v. West, 12 Vet. App. 109, 111-112 (1999); Daniels v.
Gober, 10 Vet. App. 474, 478 (1997); Caffrey v. Brown, 6 Vet.
App. 377, 383-384 (1994); Damrel v. Brown, 6 Vet. App. 242,
245 (1994); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir.
1999) (expressly adopting the "manifestly changed the
outcome" language used in Russell).
b. Smith v. Nicholson
In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the Court
held that the pre-1999 and pre-June 13, 2003 versions of
Diagnostic Code 6260 required the assignment of dual ratings
for bilateral tinnitus. VA appealed this decision to the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) and stayed the adjudication of tinnitus
rating cases affected by the Smith decision. The Federal
Circuit, in its recent Smith v. Nicholson, 451 F.3d 1344,
1349-50 (Fed. Cir. 2006) decision, concluded that the Court
had erred in not deferring to the VA's interpretation of its
own regulations, 38 C.F.R. §§ 4.25(b), 4.87 and Diagnostic
Code 6260, which limit a veteran to a single disability
rating for tinnitus, regardless whether the tinnitus is
unilateral or bilateral. Subsequently, in July 2006, the
Secretary lifted the stay of adjudication of tinnitus rating
cases.
c. Discussion
The veteran's CUE claim must fail, as the Federal Circuit has
held that deference must be given to the VA's interpretation
of 38 C.F.R. § 4.87, Diagnostic Code 6260, which VA has
construed as limiting a veteran to a single disability rating
for tinnitus, regardless whether the tinnitus is unilateral
or bilateral. Accordingly, there is no legal basis upon
which to award a greater schedular evaluation for tinnitus,
to include separate 10 percent ratings for each ear. Sabonis
v. Brown, Vet. App. 426, 430 (1994) ("where the law and not
the evidence is dispositive . . . the appeal to the [Board
should be] terminated because of the absence of legal merit
or the lack of entitlement under the law"). The RO, in its
July 1992 rating decision, thus assigned the veteran's
service-connected tinnitus the maximum schedular rating
available under the applicable regulations, and the correctly
applied this prevailing legal authority. Therefore, the
outcome was not undebatably erroneous, and there was no CUE
in the July 1992 RO decision assigning a 10 percent rating
for the veteran's bilateral tinnitus.
The veteran continues to be in receipt of the maximum
schedular rating of 10 percent authorized under Diagnostic
Code 6260 for his service-connected bilateral tinnitus.
There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for bilateral tinnitus, to
include separate 10 percent ratings for each ear. 38 C.F.R.
§ 4.87, Diagnostic Code 6260 (2005); Smith, supra.
ORDER
The claim for CUE in a July 1992 rating decision assigning a
10 percent rating for the veteran's service-connected
bilateral tinnitus is denied.
A schedular evaluation in excess of 10 percent for tinnitus
is denied.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs